2
REQUIRED READING
Casebook: Chemerinsky, CONSTITUTIONAL LAW (6th Ed. 2020, Wolters
Kluwer Pub.)
Supplement: None of the important Supreme Court cases decided in 2022
and 2023 are in the casebook. In these two terms, SCOTUS
issued some revolutionary decisions that have changed the way
we approach some of the subjects you will learn this semester.
I have posted a Supplement with these new cases on the TWEN
site and reference them in the Syllabus below. The
supplemental cases appear in blue text.
NON-REQUIRED SUGGESTED SUPPLEMENTAL READING
Glannon Guide to Constitutional Law (2 book bundle)(Wolters-
Kluwer). This can be purchased directly from Wolters Kluwer or on
another online book seller site.
Chemerinsky, C
ONSTITUTIONAL LAW – PRINCIPLES AND POLICIES (4th
d
Ed.
2015, Aspen Pub.)
I have also found that the “Law in a Flash” Con Law flashcards are pretty
good study aids. They come in two sets: Con Law I and Con Law II.
PREPARATION FOR CLASS
Because the classes are highly interactive, the assignments are estimates only.
The students are expected to attend every class and keep track of the pace. The
students should also understand that, due to the complex nature of the issues and
policy questions involved, and the sometimes-lengthy Supreme Court cases, the
reading load in Constitutional Law is higher than in most classes. I expect you to
be prepared for every class and will mark you as absent if you are not prepared.
There is no law school course in which it is more important to READ THE CASES
than in Constitutional Law; indeed, most of the fact patterns on the MBE section
are directly based on the fact patterns of the cases you read in Constitutional Law.
Therefore, I will call on students to do the cases in class and will expect you to be
prepared to be able to recite facts and answer questions about the cases.
GOALS AND OBJECTIVES OF THE COURSE
This is an introductory survey course in American Constitutional Law. Successful
students will master the complicated structure and functions of the doctrines,
legal methods, legal reasoning and legal analysis employed by lawyers who expect
to practice constitutional law, the process by which our American legal system
orders its government and protects the individual rights of its citizens. It is
expected that students achieving a grade of “C” or better will have mastered the
law and legal processes sufficiently to pass the constitutional law sections of the
bar examination. It is also expected that successful students will achieve an
understanding of the fundaments of constitutional law that is sufficient to enable
them to take the first steps to handle constitutional law issues upon graduation
from the Massachusetts School of Law. Students who fail to master the law and
legal processes sufficiently enough to pass the constitutional law sections of the
3
bar examination, or who lack the fundamental knowledge requisite to handle
constitutional law issues upon graduation, will receive a grade below that of “C.”
GRADING
Your final grade shall be composed of two (2) components:
1. YOUR MIDTERM EXAM, which will comprise 25% of your final grade.
2. YOUR FINAL EXAM, which will comprise 75% of your final grade.
Old exams, back to 2004, are on my TWEN website. They will be very useful study
tools when you reach crunch time.
READING ASSIGNMENTS
W
EEK
C
HAPTER
/S
ECTION
P
AGES
(6
TH
ED.)
Week One
Class 1
Tuesday,
August 22
Introduction to course and discussion of
class expectations.
One-hour video: One Nation under Law
Our Constitution and Form of Government (A
Primer)
R. Beeman, The Constitutional
Convention of 1787: A Revolution in
Government
How to Read Our Constitution: Is It a Sacred
Document, a Flawed Document, or a Little of
Both?
U.S. Constitution, Article I, Section 2,
Clause 3
U.S. Constitution, Article I, Section 9,
Clause 1
U.S. Constitution, Article IV, Section 2,
Clause 3
Race Discrimination and Slavery before
the Thirteenth and Fourteenth
Amendments
Dred Scott v. Sanford (1857)
Electoral College
(First Class
Supplement
on TWEN
site)
PP. 002-007
xxxix in
Casebook
xlii in
Casebook
xlvi in
Casebook
711-713
713-716
(First Class
Supplement
on TWEN
4
Class 2
Thursday,
August 24
Debating the Electoral College
(National Conference of State
Legislators)(Posted on TWEN site)
Composition of Senate and House of
Representatives
R. Rosenthal, What Democracy?
Harper’s Magazine (May 2004)
J. Cost, In Defense of the Senate,
National Review, November 20, 2017
---------------
Chapter 1: The Federal Judicial Power
The Authority for Judicial Review (Marbury
v. Madison, et al.)
Mini-Lecture: Article III and Article I Courts;
Limits on The Federal Judiciary (Interpretive
limits, Congressional Limits & Advisory
Opinions). We will not be covering District of
Columbia v. Heller because the 2
nd
Amendment right to bear arms is not tested
on the bar exam. We will later cover a 2
nd
Amendment case, McDonald v. City of
Chicago, to examine the so-called
“incorporation doctrine,” which is tested on
the bar exam.
Congressional Limits: The Exceptions and
Regulations Clause (Congress’ authority to
limit Supreme Court appellate jurisdiction
site)
PP. 008-012
(First Class
Supplement
on TWEN
site)
PP. 013-020
PP. 021-027
1-11
11-13
32-39
Week Two
Class 3
Tuesday,
August 29
Mini-Lectures: Appeals to the
Supreme Court; Jurisdiction of
Lower Courts; Justiciability Limits
(Advisory Opinions, Standing,
Ripeness, Mootness & the Political
Question Doctrine)
Justiciability Limits
Advisory Opinions
Standing
Constitutional Standing (Injury,
Causation & Redressibility)
39-41
41-44
44
45-66
5
Class 4
Thursday,
August 31
Prudential Standing
----------
Ripeness
Mootness
The Political Question Doctrine
- Moore v. Harper (2003)
Mini-Lecture: The Adequate and
Independent State Grounds
Doctrine
66-79
79-85
85-90
90-118
Supplemental
cases in
TWEN
Week Three
Class 5
Tuesday,
September 5
Class 6
Thursday,
September 7
Chapter 2: The Federal Legislative Power
Introduction: Congress and the
States
The Necessary & Proper Clause
---------------
The Commerce Power
The Initial Era
Skip the 1890s-1937 at pages 159 to
166. (I will comment on this briefly.)
1937-1990s
The Tenth Amendment Between
1937 and the 1990s
1990s-???: Narrowing of the
Commerce Power and Revival of the
Tenth Amendment as a Constraint on
Congress
119-150
155
155-156
156-159
-----
166-181
181-187
187-215
Week Four
Class 7
Tuesday,
September 12
Does the Tenth Amendment Limit
Congress’s Authority?
Taxing and Spending Power
216-240
240-248
6
Class 8
Thursday,
September 14
Congress’s Power Under the Post-
Civil War Amendments
----------
Congress’s Power to Authorize
Suits Against State Government --
Eleventh Amendment Immunity (For
some reason, the author removed this
section from the 6
th
edition. Please refer
to my detailed PowerPoint presentation
for this topic that is tested on the bar
exam.)
248-274
Methodology
on 11
th
Amendment
on TWEN
site; Student
Study Guide
on TWEN
site, pp. 18-
21.
Week Five
Class 9
Tuesday,
September 19
Class 10
Thursday,
September 21
Chapter 3: The Federal Executive Power
Mini-Lecture: The Executive
Powers Enumerated Under Article
II of the Constitution
Mini-Lecture: The So-Called “Take
Care” Clause of Article II, § 3
(Also, So-Called “Signing
Statements” and habeas corpus)
Inherent Presidential Power
Executive Privilege
The Authority of Congress To
Increase Executive Power
The Constitutional Problems Of
The Administrative State
The Non-Delegation Doctrine
and Its Demise
- West Virginia v. Environmental
Protection Agency (2022)
- Biden v. Nebraska Dpt. of
Education (2023)
The Legislative Veto and Its
Demise
---------------
Checking Administrative Power;
The Appointment and Removal
275-284
285-290
290-291
292-292
292-304
Supplemental
cases in
TWEN
304-312
312-313
313-339
7
Powers
Separation of Powers and Foreign
Policy
Are Foreign Policy and
Domestic Affairs Different?
Treaties and Executive
Agreements
War Powers: War Powers
Resolution
339-339
340-351
351-354
354-358
Week Six
Class 11
Tuesday,
September 26
Class 12
Thursday,
September 28
Presidential Power and the War
on Terrorism
Presidential Power over Immigration
Checks on the President
Suing and Prosecuting the
President
Impeachment
---------------
Chapter 4: Limits on State Regulatory and
Taxing Power
Preemption of State and Local
Laws
Mini-Lecture: The Supremacy
Clause
Express Preemption
Implied Preemption
Conflict Preemption
Impeding Federal Objective
Occupying the Field
Intergovernmental Immunity
- United States v. Washington (2022)
358-395
395-406
406
406-413
413-419
419-420
420-422
422-429
429-430
430-435
435-444
Supplemental
cases in
TWEN
8
Week
Seven
Class 13
Tuesday,
October 3
Class 14
Thursday,
October 5
The Dormant Commerce Clause
Exceptions to the Dormant
Commerce Clause
Congressional Approval
Market Participant Exception
---------------
The Privileges & Immunities
Clause of Article IV, § 2
Chapter 5: The Structure of the
Constitution’s Protection of Civil Rights and
Civil Liberties
Introduction
Application of Bill of Rights to the
States
Incorporation of the Bill of Rights
Into the Due Process Clause of the
14
th
Amendment
Application of the Bill of Rights to
Private Conduct (State Action)
444-480
480-481
481-483
483-489
489-501
503-504
504-516
516-532
532-536
Week Eight
Class 15
Tuesday,
October 10
Class 15
Thursday,
October 12
Exceptions to the State Action Doctrine
The Public Functions
Exception
The Entanglement
Exception
---------------
Chapter 6: Economic Liberties
Economic Substantive Due Process
Introduction & Early History & Lochner
Era (Skim through this material, which
is mostly for background, but which
may portend where the current
Supreme Court wants to go in the
future)
536-537
538-553
553-578
579-599
581
581-599
9
Economic Substantive Due
Process Since 1937
Rebirth of Economic Due
Process?
The Contracts Clause
The Takings Clause
603-606
606-618
618-631
631-682
Week Nine
Class 17
Tuesday,
October 17
Class 18
Thursday,
October 19
MIDTERM EXAMINATION
(The Exam will cover all topics covered
through Thursday, October 12
th
.)
---------------
Please note that we jump from here to page
1177 for Thursday’s class.
---------------
Chapter 9: First Amendment Freedom of
Expression
Introduction
Free Speech Methodology
The Distinction Between
Content-Based and Content-
Neutral Laws
- Shurtleff v. City of Boston (2022)
Vagueness & Overbreadth
Prior Restraints
1177-1185
1186-1229
Supplemental
cases in
TWEN
1229-1237
1237-1266
Week Ten
Class 19
Tuesday,
October 24
What Is an Infringement of
Freedom of Speech?
Compelled Speech
- 303 Creative LLC v. Elenis (2023)
Unconstitutional Conditions
1266-1270
1270-1294
Supplemental
cases in
TWEN
1295-1308
10
Class 20
Thursday,
October 26
Unprotected and Less Protected
Speech
Incitement/Clear and Present
Danger:
---------------
Fighting Words and Hostile
Audience Cases
- Counterman v. Colorado (2023)
Sexually-Oriented Speech
Obscenity & Child Pornography
Protected but Low-Value Sexual
Speech
1308-1309
1309-1311;
1329-1341
1341-1365
Supplemental
cases in
TWEN
1365-1365
1365-1380
1380-1391
Week
Eleven
Class 21
Tuesday,
October 31
Class 22
Thursday,
November 2
Profanity and Indecent
Speech
Commercial Speech
What Places Are Available for
Speech
---------------
Speech in Schools
Speech Rights for Government Employees
- Kennedy v. Bremerton School
Dist. (2022)(only the Free Speech
issue; we will revisit for Free
Exercise & Establishment)
Freedom of Association
Freedom of the Press
1391-1404
1419-1446
1531-1574
1582-1597
1597-1605
Supplemental
cases in
TWEN
1605-1635
1635-1664
Week
Twelve
Class 23
Thursday,
November 7
Chapter 10: First Amendment Freedom of
Religion
11
Class 24
Thursday,
November 9
Introduction
The Free Exercise Clause
- Carson v. Makin (2022)
- Kennedy v. Bremerton School
Dist. (2022)(only the Free
Exercise issue; we will revisit for
Establishment)
---------------
The Establishment Clause
- Kennedy v. Bremerton School
Dist. (2022)(only
Establishment issue)
Please note that, at this point, we are
jumping back in the casebook to Equal
Protection.
1665-1675
1675-1717
Supplemental
cases in
TWEN
1717-1736
Supplemental
cases in
TWEN
Week
Thirteen
Class 25
Tuesday,
November 14
Class 26
Thursday,
November 16
Chapter 7: Equal Protection
Introduction
The Rational Basis Test
Race and National Origin (Strict
Scrutiny)
---------------
Race and National Origin (Strict
Scrutiny) Continued
- Students for Fair Admissions v.
President & Fellows of Harvard
Univ. (2023)
683-689
689-711
711-769
769-836
Supplemental
cases in
TWEN
Week
Fourteen
Class 27
Tuesday,
November 21
Gender Classifications
(Intermediate Scrutiny)
Alienage Classifications
(Sometimes Strict Scrutiny,
Sometimes Rational Basis):
836-876
876-891
12
Thursday,
November 23
Non-Marital Children
(Intermediate Scrutiny)
Other Classifications: Age; Disability
Wealth; Sexual Orientation
---------------
NO CLASS – THANKSGIVING DAY
891-894
894-901
Week
Fifteen
Class 28
Tuesday,
November 28
Class 29
Thursday,
November 30
Chapter 8: Fundamental Rights Under Due
Process and Equal Protection
Introduction
Family Autonomy
The Right to Marry
The Right to Custody of One’s
Own Children
The Right to Keep the Family
Together
The Right to Control the
Uprbringing of One’s Children
Reproductive Autonomy
The Right to Procreate
The Right to Use
Contraceptives
---------------
The Right to an Abortion
- Dobbs v. Jackson Women’s Health
Org. (2022)
Right to Make One’s Own
Medical Decisions
Sexual Orientation and Sexual
Activity
The Right to Travel: Saenz
903-909
909-929
929-938
938-941
941-950
950-952
952-961
961-1015
Supplemental
cases in
TWEN
1015-1030
1030-1045
1046-1053
13
The Right to Vote
- Allen v. Milligan (2023)
The Right to an Education
1053-1083
Supplemental
cases in
TWEN
1121-1128
CLASS EXPECTATIONS
Anticipated Due Dates
I CALL ON STUDENTS RANDOMLY, AND YOU ARE EXPECTED TO BE PREPARED FOR
EVERY CLASS. The Constitutional Law section of the bar exam is largely based on
the most important Constitutional Law cases that we will read in class. It is
essential that you read these cases closely and understand them.
Because the classes are intended to be highly interactive, the listed anticipated
due dates are to be considered aspirational. At times, especially at the beginning
of the semester, we may fall behind of the anticipated due dates; it is also possible
that we will move more quickly at times than anticipated. You therefore should
continuously match those dates to what we have actually completed in class.
Please be prepared for every class by staying slightly ahead of the anticipated due
dates and by adjusting and readjusting as the semester progresses.
If you have read ahead substantially, we expect you to review what you have
already ready just before class. It is no excuse to state, “I read the case too long
ago to remember it.” Lawyers often write briefs months before they argue in court
and, like you, are expected to know the material when they are called on to
discuss the legal issues.
Notes and Tape Recorders in Class
We test what we teach, and we teach by the syllabus. This means that, if you do
all the reading and come to all the classes, you will see no surprises on the final
exam. We am told by former students that those who fail to come to class tend not
to do very well on the final exam. You therefore should come to class and develop
an effective method of recording what goes on. Since the classes are interactive
and it is not always possible to take copious notes on every point, we recommend
the use of tape/digital recorders in class. A recorder should assist in rounding out,
or filling gaps in, notes. It also can serve as a “safety net” in a fast-paced class.
Some students take notes on a laptop or netbook, and this is fine. One caveat,
however: we sometimes notice that students are more consumed with typing out
what is said in class word-for-word than with listening and participating. The
purpose of class is not for you to be a scribe; it is for you to develop analytical
skills, and this cannot be achieved if you are single-mindedly typing. You will
always be able to supplement the law we discuss in class with outside reading.
Frequent Absences
I take attendance and also call on students randomly; I will have the pleasure of
speaking with each of you several times this semester. Professors at MSL are
authorized to lower the grades of frequently absent or frequently unprepared
students by one-third of a grade. By way of illustration, this means that a final
14
grade of C will be lowered to a C- if the student is absent from class an inordinate
number of times; a B- will be lowered to a C+, and so on. If i call on you, and you
are either absent or unprepared four (4) or more times, I will lower your grade as
described above. An absence is an absence. Informing me that you are going to be
missing class, whatever the reason, will not prevent me from marking you absent.
If you miss more than three classes, you likely have outside issues that should
suggest that you might want to take a leave of absence because law school is not
your first priority.
Being Prepared
We expect you to be prepared for every class and treat an unprepared student as
an absent student. This is not college, and old college tricks like skimming,
cramming and pretending to be prepared simply will not work. Here is what we
expect of you before, during and after class:
Before Class
1. Read, reread, study and THINK thoroughly about the assigned cases and
materials;
2. Do not leave a case or other reading until you are confident that you
thoroughly understand the facts sufficiently to restate them if asked to do
so in class;
3. Do not leave a case or other reading until you are confident that you
understand why the case book author placed the case in the book;
4. Do not leave a case or other reading until you are confident that you can
recite the legal issue(s) presented in the case;
5. Do not leave a case or other reading until you are confident that you know
and UNDERSTAND each rule of law, and its elements, presented in the case;
6. Do not leave a case or other reading until you are confident that you
understand the policy reasons for the adoption of each rule of law
implicated in the case;
7. Read, reread, study and THINK thoroughly about the relevant
“hypotheticals” or problems pertaining to the subject matter being studied
in each class;
8. Do not leave a hypothetical or problem until you are confident that you
understand why the professor assigned it;
9. Do not leave a hypothetical or problem until you are confident that you can
recite the legal issue(s) presented in it;
10. Do not leave a hypothetical or problem until you are confident that you
know and UNDERSTAND each rule of law, and its elements, implicated in the
hypothetical or problem.
11. Do not leave a hypothetical or problem until you are confident that you
understand the policy reasons for the adoption of each rule of law
implicated by the hypothetical or problem.
15
During Class
1. Be prepared well enough to be able to provide an accurate recitation of the
facts and holding of each assigned case, hypothetical or problem.
2. Be prepared well enough to be able to provide a concise recitation of the
issue(s) presented in each case, hypothetical or problem.
3. Be prepared well enough to be able intelligently discuss the legal issues and
rules of law presented or implicated by the assigned reading.
4. Be prepared enough to be able to intelligently discuss any factual variations
the professor and/or other students propose during class.
5. Be prepared enough to be able to intelligently discuss flaws and strengths in
the court’s reasoning or in the applicable rule of law;
6. Be prepared enough to be able to intelligently discuss alternative arguments
that might have better resolved the dispute at issue in each case;
7. Be prepared enough to be able to intelligently discuss the policy issues
relevant to the each case, hypothetical or problem.
After Class
1. Identify and clarify anything confusing about the law or application or law
covered in class. If necessary, work with classmates collaboratively to
achieve mastery of the law;
2. Rework your class notes and case briefs to reflect a more accurate picture
of the cases, issues and rules of law.
3. Think about how the lesson covered in the particular class fits into the
overarching body of property law.
You will be expected to read each assignment in its entirety. Reading “case
notes,” “canned briefs,” Westlaw briefs and other shortcut aids, at the expense of
the actual cases, will fail to prepare you adequately and will result in you being
marked as unprepared.
RULES ON CLASSROOM DECORUM
I expect you to observe the following rules in class. I do not believe any of these
rules are unreasonable:
1. Please Stay Put. Our day class schedule will be 12:30 p.m. to 2:15 p.m. The
evening schedule will be 9:00 p.m. to 10:50 p.m. These are long classes. To
the extent possible, please stay in your seat. A parade of students in and
out of the class tends to be disruptive to the conduct of the class.
2. Timeliness. Please arrive on time. Late arrivals are disruptive to the class.
Tardiness should still be the exception rather than the rule. I often take
attendance at the beginning of the class. Late students will be marked
absent, and I will not change this designation if you come in later.
16
If tardiness becomes an issue, i.e., if it starts to cause disruptions, I will
impose a hard-and-fast rule that those arriving late will not be allowed into
the classroom.
3. Stand, Name, Project. When you speak in class, whether it’s while
volunteering or after being called on, please stand, state your first name,
face the rest of the class (not me), and project your voice so as to be heard.
Please do this for the entire semester. Speaking in public is uncomfortable
at first, but even those of you who intend to practice transactional law as
opposed to litigation must realize that the practice of law is a performance
art as well as an intellectual endeavor.
4. Cell Phones and Messaging. Except for class purposes, there will be no cell
phone use in class. I reserve the right to instruct students to leave the
class immediately if they engage in text messaging, instant messaging,
social media, or other forms of electronic communication during class, and
will do so if this issue becomes a problem. If you refuse an instruction to
leave, I will report you to the administration for discipline.
4. Laptop Computers. While I believe that laptop computers are an invaluable
classroom tool, lately their use sometimes has become troublesome in
several ways. Like cell phones, they beep and make noises when starting
up. Please arrive early enough to start your laptop prior to class so the
start-up noises will not be disruptive. If you cannot set up your laptop prior
to class, please ensure that it is on mute and will not be disruptive.
It is never appropriate to use computers to play computer games, send and
receive instant messages, surf the net, or perform other computer functions
not related to the task at hand. I wander around the room a bit while
teaching and will probably catch at least some of such off-focus activity if it
occurs.
With limited exceptions, attorneys are not permitted to use their laptops,
tabs, or other electronic devices while arguing or trying cases in court. The
same will be true in my class. When you end up standing to present a case
or answer questions framed by the professor, you are to close your laptops
and put down other devices. Your focus will be on the professor and other
students. If you feel that you are unable to remember all you have gleaned
from your reading, you may refer to paper notes.
5. Talking in Class. This will be an interactive class, and it is normal for there
to be a bit of a “buzz” while we are discussing a case or “hypothetical.” I do
not usually get upset if the class is analyzing a hypothetical, and some
students do a little “kibitzing” in the process. However, I still expect you to
listen while others are talking so you can respond if called upon, and, most
importantly, to respect others by not talking over them. I will not tolerate
talking that doesn’t involve the subject matter at hand.
6. Eating/Drinking in Class. I generally do not approve of anything that might
divert your focus from the class discussion, and eating and drinking in class
certainly falls into that category. On the other hand, I do understand that
stressed-for-time students, especially evening students, often are unable to
take meals at normal hours, and therefore need some sustenance to get
them through. Generally, therefore, I tolerate small snacks and drinks
during class. I will not tolerate full meals, full “submarine” sandwiches, or
17
anything of the like. I also will not tolerate undue noise while eating, e.g.
stubborn plastic wrappers, crunchy foods, etc. I will ban all foods and
drinks in class if I think they are becoming a distraction.
9. Civility above All Else. There is often intellectual tension is a law school
classroom especially with subjects like Constitutional Law, on which
reasonable minds can differ. Students and professors can differ --
sometimes widely – in their views on morals, ethics, society, politics and
ways of life. It is my intention to treat each of you with the utmost courtesy
and respect, even when we disagree. In turn, I expect that each of you will
also treat each other with respect and courtesy. Passionate argument is
terrific if kept civil and respectful. Remember: argue the issues, not the
personalities!
